JUDGMENT :

1. Heard learned counsel for the appellants and learned counsel for respondent-Jaipur Development Authority.

2. This appeal arises out of order dated 04.09.2021 passed by the learned Single Judge, whereby, writ petition filed by residents of the area has been dismissed as not maintainable, leaving the appellants to take remedy of filing civil suit.

3. Learned counsel for the appellants would submit that the appellants and private respondents No. 8 to 53, who are residents of the area, had filed writ petition seeking indulgence of the Court in the matter of alleged encroachment and illegal construction being raised on public road by Respondents No. 3 to 5 (Kamlesh Jain, K.C. Singhal and M/s. Pooja Propcorn). He would submit that the allegation being of encroachment on public land, Jaipur Development Authority was obliged under the law to enquire into the complaints and hold enquiry. He would submit that relief was sought from the Court to direct Jaipur Development Authority to perform its statutory obligation and it was not a private law remedy sought by the appellants.

4. Learned counsel appearing on behalf of the respondents-Jaipur Development Authority would submit that in the present case, there are allegations of encroachment by certain persons, which may require factual enquiry and even recording of evidence. Therefore, the learned Single Judge was inclined to dismiss the writ petition leaving the writ petitioners/appellants to work out their civil remedy and there is no decision against them on merits.

5. The writ petition, which was filed by the appellants, was founded on the allegation that some persons/Respondents No. 3 to 5 have raised illegal construction by encroaching upon public road. This allegation and the relief founded on such allegation was not a relief which could be termed as private law relief but it was public law remedy seeking to invoke extra-ordinary jurisdiction of the Constitutional Court under Article 226 of the Constitution of India.

6. A distinction has to be drawn between public law remedy and private law relief. It is not a case where two individuals were disputing their title over a piece of land, in which case the remedy would be to approach the civil court and seek appropriate relief.

7. Present is a case where the allegations have been made that certain persons have encroached upon public land. Therefore, remedy sought to be invoked would be public law remedy by approaching the Writ Court. Section 72 of the Jaipur Development Authority Act, 1982 (hereinafter referred to as 'the Act') provides as below:

[72. Encroachment or obstruction upon public land - (1) Whoever makes any encroachment in any land or space not being private property, whether such land or space belongs to or vests in the Authority or not, except steps over drain in the public street shall on conviction be punished with simple imprisonment which shall not be less than [one year] but which may extend to three years and with fine which may extend to [one lakh rupees]:

Provided that the court may for any adequate or special reason to be mentioned in the judgment impose a sentence of imprisonment for a term of less than [one year].

(2) Whoever makes any obstruction in any land or space not being private property, whether such land or space belongs to or vests in the Authority or not, except steps over drain in any public street shall on conviction be punished with simple imprisonment which may extend to [one year or with fine which may extend to five thousand rupees] or with both.

(3) The Authority or any officer authorised by it in this behalf shall have power to remove any such obstruction or encroachment and the expenses of such removal shall be paid by the person who had caused the said obstruction or encroachment.

(4) Whoever not being duly authorised in that behalf removes earth, sand or other material from any land or space as aforesaid, shall be punished on conviction with imprisonment which may extend to [one year or wi